This consolidated unfair labor practice case is before the Authority on
exceptions filed by the Respondent to the attached Administrative Law Judge's
decision. The General Counsel filed a brief with the Authority.

In Case No. 8-CA-90297 the complaint alleged that the Respondent
violated section 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to furnish to the
Charging Party information that was necessary for it to assess a potential
grievance. The complaint in Case No. 8-CA-90301 alleged that the Respondent
violated section 7116(a)(1) and (5) of the Statute by unilaterally changing
working conditions of unit employees when it implemented a new work assignment
procedure without giving the Union the opportunity to bargain over the impact
and implementation of the change. The Judge found that the Respondent violated
the Statute as alleged.

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the Judge made
at the hearing and find that no prejudicial error was committed. We affirm the
rulings. Upon consideration of the Judge's decision and the entire record, we
adopt the Judge's findings, conclusions and recommended Order for the reasons
that follow, in addition to the reasons in his decision.

A. Case No. 8-CA-90297

l. Judge's Findings and Exceptions to Judge's
Decision

In Case No. 8-CA-90297, the Judge found that in November and December
1988 the Union requested the bottom half of certain spread sheets giving
production figures for individual unit employees who worked as claims examiners
or "adjudicators." Judge's Decision at 4. In response to an earlier request for
the spread sheets, the Respondent had supplied the top portion of the sheets,
but had refused to disclose the bottom portions. The Judge concluded that the
material was reasonably available and necessary for the Union to perform its
representational duties and that the Union had not waived its right to the
information. The Judge concluded also that disclosure of the information would
not violate the adjudicators' privacy rights.

There is no dispute that the requested information is reasonably
available. In addition, there were no exceptions to the Judge's determination
that the information requested by the Union was necessary for it to perform its
representational duties because the material was sought as part of an
investigation of a potential grievance.(1) The Respondent
argues in its exceptions, however, that the Union had waived its right to
obtain the information and that the Judge erred in evaluating the evidence and
in concluding that there was no waiver; that release of the information could
not properly be required because the information pertained to a matter that was
moot; and that release of the information was prohibited by the Privacy
Act.

Contrary to the Respondent's contention, we agree with the Judge that
the record contains insufficient evidence to conclude that the bargaining
history establishes a clear and unmistakable waiver of the Union's right to the
requested information. Accordingly, as all the other criteria of section
7114(b)(4) have been met, the Respondent violated the Statute by refusing to
furnish the material unless release of the information was prohibited by the
Privacy Act.

2. Disclosure Not Prohibited by the Privacy Act

We also agree with the Judge, for the reasons stated below, that
disclosure of the requested information is not barred by the Privacy Act, 5
U.S.C. § 552a.

With certain enumerated exceptions, the Privacy Act prohibits the
disclosure of any record concerning a Federal employee if the record is
contained in a system of records and the individual to whom that record
pertains has not consented to the disclosure. 5 U.S.C. § 552a(b). Section
(b)(2) of the Privacy Act provides that the prohibition against disclosure is
not applicable if disclosure of the information would be required under the
Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Section (b)(3) of the
Privacy Act permits disclosure "for a routine use," which is defined in 5
U.S.C. § 552a(a)(7) as "the use of such record for a purpose which is
compatible with the purpose for which it was collected."

In order to determine whether disclosure of the requested information
in this case is permitted by section (b)(2) of the Privacy Act, we must
determine whether it is disclosable under Exemption (b)(6) of the FOIA. That
section provides that information contained in personnel files, in addition to
medical and other similar files, may be withheld if disclosure of the
information would constitute a "clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6).

To determine whether disclosure of the requested information would
constitute a clearly unwarranted invasion of personal privacy, we must balance
the employee's right to privacy against the public interest in disclosure.
U.S. Department of Transportation, Federal Aviation Administration, National
Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191,
199 (1991) (FAA, Atlantic City Airport). In applying the balancing test,
we look to the public interest embodied in the Statute. See generallyU.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 37 FLRA 515, 525-35 (1990) (Portsmouth Naval Shipyard),
application for enforcement denied sub nom.FLRA v. U.S. Department
of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d
49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard).(2) We have recognized that the "public interest"
identified in the Statute may be summarized as "the facilitation of the
collective bargaining process . . . ." Id. at 531. We conclude here that
there is a strong public interest in the disclosure of the requested
information.

As the Judge found, in connection with a potential grievance the Union
requested certain spread sheets, the bottom half of which gave production
figures for individual employees, as well as certain other data that was used
to evaluate the adjudicators' work performance. The Union sought the
information on production figures because of its concern that the reassignment
of certain easier work, if made, could have affected employees' productivity.
The Respondent conceded that the information sought is essential in formulating
the employees' performance appraisals. As the Judge found, the information "was
necessary for [the Union] to assess a potential grievance and was consistent
with its obligation to perform its representational responsibilities." Judge's
Decision at 9. We conclude, consistent with our precedent, that such
representational responsibilities are in the public interest and also safeguard
the public interest. See, for example, U.S. Department of
Health and Human Services, Social Security Administration and Social Security
Administration Field Operations, Region II, 43 FLRA 164, 166 (1991)
(Social Security Administration), petition for review filed sub
nom.U.S. Department of Health and Human Services, Social Security
Administration and Social Security Administration Field Operations, Region II
v. FLRA, No. 92-1012 (D.C. Cir. Jan. 15, 1992).

We recognize that the employees have definite privacy interests, but
conclude that those interests are outweighed by the public interest embodied in
the Statute. The Respondent argued that it could not furnish the bottom half of
the spread sheets even in sanitized form because, if it did so, individuals
could be identified from the information on that portion of the document and
confidential information about those individuals would be disclosed, including
the amount of leave used and statistics that determine an adjudicator's
performance rating. Unquestionably, the employees could view disclosure of
information on which their performance appraisals were based as an invasion of
their personal privacy. SeeSocial Security Administration, 43
FLRA at 167. However, we note that there is no indication that the Union
envisioned public disclosure of the information; nor was it asserted that the
information was stigmatizing or that it might be used to embarrass the
employees involved.(3)

On balance, we conclude that the public interest inherent in the
Union's discharge of its obligations under the Statute to monitor and
administer the collective bargaining agreement, including the
grievance/arbitration provision of that agreement, outweighs the employees'
personal privacy interests in preventing disclosure of information about their
performance to their exclusive collective bargaining representative.

Even if, as an alternative to our test in Portsmouth Naval
Shipyard, we apply the public interest test identified by the U.S. Supreme
Court in United States Department of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 772 (1989) (Reporters
Committee), which requires that we examine the requested documents and
their relationship to the basic purpose of the FOIA "to open agency action to
the light of public scrutiny[,]" we find that there is an overriding public
interest in the disclosure of the information requested by the Union in this
case. SeeFAA, Atlantic City Airport, 43 FLRA at 202 (1991)
(Union sought transcript of Equal Employment Opportunity Commission hearing to
determine whether agency had violated parties' agreement by not following the
procedures in their merit promotion plan; Authority concluded that disclosure
would open to public scrutiny the manner in which the Agency administers its
selection process and whether that process is administered in a fair and
evenhanded manner and that, therefore, the public interest outweighed the
limited privacy interest of a single employee).

The record in this case discloses that the Union was interested in the
information in dispute in connection with its investigation of the manner in
which work assignment procedures had been implemented. Specifically, the Union
was concerned that the Respondent had changed its method of work assignments in
such a way as to negatively affect the timeliness and quality of the
adjudicators' work, which in turn could have affected the performance
appraisals of all of the adjudicators. Thus, it appears that in attempting to
redress any injustices done to individual employees, the Union was also
questioning the fairness of the Respondent's administration of its performance
appraisal system and the objectivity of the distribution of work that underlies
the appraisals. As we have said before, "the early resolution of potential
grievances and the proper administration of agency performance appraisal
systems are the type of public interests which disclosure of information is
intended to further." U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Silver Spring,
Maryland, 38 FLRA 120, 132 (1990), application for enforcement filed sub
nom.FLRA v. U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Silver Spring, MD,
No. 91-1175 (D.C. Cir. April 12, 1991); Social Security Administration,
43 FLRA at 168. In view of the public's interest in the

Respondent's compliance with its responsibilities for administering its
appraisal system in a fair and evenhanded manner, a valuable by-product of the
disclosure of the procedures by which work is assigned could be "to open agency
action to the light of public scrutiny," Reporters Committee, 489 U.S.
at 772. SeeAtlantic City Airport. Moreover, the adjudicators are
responsible for awarding or denying benefits to veterans. Thus, any insight
into the efficiency of the processing of those claims that might be gained by
disclosing work assignment procedures also would be a valuable by-product of
the disclosure of the requested information. As the Supreme Court has said,
"[o]fficial information that sheds light on an agency's performance of its
statutory duties falls squarely within that statutory purpose." Reporters
Committee, quoted in United States Department of State v. Ray, 112
S. Ct. 541, 549 (1991).(4)

Accordingly, balancing the employees' limited privacy interest in the
bottom half of the spread sheets against the strong public interest in the
disclosure to the Union of that material, we conclude that disclosure would not
constitute a clearly unwarranted invasion of personal privacy and that such
disclosure is consonant with the Privacy Act, even under the test set forth in
Reporters Committee.

We conclude that the information is also subject to disclosure as a
"routine use" under section (b)(3) of the Privacy Act. Under Office of
Personnel Management regulations, performance appraisals for Federal employees
and supporting documentation for those appraisals are contained in the system
of records entitled "Employee Performance File System Records." 55 Fed. Reg.
3842-43. Routine uses of records maintained in this system include:

To disclose information to an arbitrator to resolve disputes under a
negotiated grievance procedure or to officials of labor organizations
recognized under 5 U.S.C. chapter 71 [the Statute] when relevant and necessary
to their duties of exclusive representation.

55 Fed. Reg. 3844. No exceptions were filed to the Judge's findings that
disclosure of the requested information is necessary for the proper discharge
of the Union's representational functions. Accordingly, as the information
concededly is necessary to the Union's duties of exclusive representation, it
is encompassed by the routine use statement and, therefore, disclosure of the
information is permitted under section (b)(3) of the Privacy Act.

3. The Judge's Remedy is Appropriate

Finally, we reject the Respondent's argument that even if it violated
the Statute, it should not be ordered to furnish the information because the
grievance filed in November, 1988, "is no longer cognizable under law as it is
. . . moot." Respondent's exceptions at 9.

The Union made the specific request for the complete spread sheets on
November 22, 1988. As noted by the Judge, "[t]he evidence is uncontroverted
that the Union was investigating a potential grievance." Judge's Decision at 8.
The record discloses that the Union requested the information because it
believed that it could aid the Union in assessing the fairness of the
adjudicators' performance evaluations. Shortly thereafter, it filed a grievance
contending that work "was not assigned [to unit employees] fairly and equitably
under the Performance Standard." G.C. Exh. 11.

Even assuming, as argued by the Respondent, that further processing of
the grievance that was filed is time-barred, there is no basis in the record to
suggest that the spread sheets would not be useful in connection with the
investigation of other potential grievances regarding the adjudicators'
performance evaluations. Accordingly, we conclude that the information remains
necessary for the Union to fulfill its representational functions.
CompareDepartment of Justice, United States Immigration and
Naturalization Service, United States Border Patrol, El Paso, Texas, 41
FLRA 259, 262 (1991) (INS, El Paso) (union's need for information was
not rendered moot by the removal from employment of a potential grievant
because the information was necessary for the union to fulfill its broader
representational obligations) withDepartment of Veterans Affairs,
Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 41 FLRA
1091, 1100 (1991), petition for review filed, No. 91-1470 (D.C. Cir.
Nov. 14, 1991) (respondent not ordered to furnish information despite unfair
labor practice finding by Authority because no basis to conclude that the
information would be useful to the union in fulfilling its representational
duties) and U.S. Department of Treasury, Internal Revenue Service,
Washington, D.C. and Internal Revenue Service, Helena District, Helena,
Montana, 39 FLRA 241 (1991) (respondent not ordered to furnish information
to remedy violation, in view of charging party's statement that information is
of no present use to it).

In sum, in Case No. 8-CA-90297 we conclude that, as disclosure of the
requested information is not prohibited by law and meets all the other
requirements for disclosure set forth in section 7114(b)(4) of the Statute, the
Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing
and refusing to furnish the information to the Union. To remedy the violation
found, we will order the Respondent to furnish the requested information to the
Union.

B. Case No. 8-CA-90301

In Case No. 8-CA-90301, we agree with the Judge, for the reasons he
stated, that the Respondent violated section 7116(a)(1) and (5) of the Statute
when it unilaterally changed the productivity standard for file clerks, who are
unit employees, without bargaining over the impact and implementation of the
change.(5) Thus, we conclude that the Respondent changed a
condition of employment, which had an impact on unit employees that was more
than deminimis, and that the Union did not waive its right to
bargain over the impact and implementation of the change.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations Statute, it
is hereby ordered that United States Department of Veterans Affairs, Regional
Office, San Diego, California, shall:

1. Cease and desist from:

(a) Failing and refusing to provide the American Federation of
Government Employees, Local 490, AFL-CIO, the exclusive representative of its
employees, requested information that is reasonably available and necessary for
it to properly perform its representational responsibilities in connection with
specific productivity standards for claims adjudicators.

(b) Unilaterally changing working conditions of unit employees by
implementing digit assignments for file clerks without fulfilling its
obligation to bargain with the American Federation of Government Employees,
Local 490, AFL-CIO, the exclusive representative of its employees, concerning
the impact and implementation of such change.

(c) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:

(a) Upon request, furnish the American Federation of Government
Employees, Local 490, AFL-CIO, the exclusive representative of its employees,
all copies of the full spread sheets that are reasonably available and
necessary for it to properly perform its representational responsibilities in
connection with specific productivity standards for claims adjudicators.

(b) Upon request, negotiate with the American Federation of Government
Employees, Local 490, AFL-CIO, the exclusive representative of its employees
over the impact and implementation of the changes of digit assignments for file
clerks which was implemented on or about March 3, 1989.

(c) Post at its U.S. Department of Veterans Affairs Regional Office,
San Diego, California copies of the

attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the Director and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered by any other
material.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, San Francisco Regional Office,
Federal Labor Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to provide the American Federation of
Government Employees, Local 490, AFL-CIO, the exclusive representative of our
employees, requested information that is reasonably available and necessary for
it to properly perform its representational responsibilities in connection with
specific productivity standards for claims adjudicators.

WE WILL NOT unilaterally change working conditions of unit employees by
implementing digit assignments for file clerks without fulfilling our
obligation to bargain with the American Federation of Government Employees,
Local 490, AFL-CIO, the exclusive representative of our employees, concerning
the impact and implementation of such change.

WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

WE WILL, upon request, provide the American Federation of Government
Employees, Local 490, AFL-CIO, the exclusive representative of our employees,
all copies of the full spread sheets that are reasonably available and
necessary for it to properly perform its representational responsibilities in
connection with specific productivity standards for claims adjudicators.

WE WILL, upon request, negotiate with the American Federation of
Government Employees, Local 490, AFL-CIO, the exclusive representative of our
employees over the impact and implementation of the changes of digit
assignments for file clerks which was implemented on or about March 3,
1989.

_____________________________(Activity)

Dated:________ By:_______________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director San Francisco Regional Office, Federal Labor Relations Authority,
whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and
whose telephone number is: (415) 744-4000.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The record shows that the Union also filed a grievance
in November 1988, which arose from the mid-term evaluations of unit
employees.

2. Although the U.S. Court of Appeals for the First
Circuit denied the Authority's petition for enforcement of Portsmouth Naval
Shipyard, another court of appeals enforced a similar Authority decision
that relied on Portsmouth Naval Shipyard. FLRA v. U.S. Department of
Commerce, National Oceanic and Atmospheric Administration, National Ocean
Service, Nos. 90-1852 (4th Cir., Jan. 24, 1992), enforcing 37 FLRA
663 (1990). Further, on November 5, 1991, the U.S. Court of Appeals for the
Third Circuit granted the Authority's petition for rehearing en banc in FLRA
v. U.S. Department of the Navy, Navy Ships Parts Control Center, et al.,
Nos. 90-3690, 90-3724 (3d Cir. Sept. 13, 1991), in which a divided panel of the
Court of Appeals for the Third Circuit had denied the Authority's petition for
enforcement of U.S. Department of the Navy, Navy Ships Parts Control Center
and Navy Fleet Material Support Office and NAVSEA Logistics Center and Navy
Publishing and Printing Service, 37 FLRA 722 (1990), which relied on
Portsmouth Naval Shipyard. We respectfully adhere to our decision in
Portsmouth Naval Shipyard.

3. Although the Respondent contends in its exceptions that
"members of the rank and file did not want this information released to
the Charging Party," Respondent's Exceptions at 5 (emphasis in original), the
evidence cited to support that assertion consists of a statement by a
management witness that two of the nine adjudicators had told her they did not
want the information released, Transcript (Tr.) at 72, and testimony on
cross-examination by a Union witness that of the three adjudicators he had
spoken to regarding the release of the information, he remembered that one had
given him the information and he could not remember whether the others had done
so, Tr. at 38.

4. We note that the Supreme Court has expressly declined
to rule that consideration of derivative uses of requested documents is not a
proper analytical tool to use in the process of balancing the public interest
in disclosure against the individual's interest in privacy. United States
Department of State v. Ray, 112 S. Ct. at 549-50.

5. The Respondent excepts to certain credibility
resolutions of the Judge on which his findings of fact are based. The demeanor
of witnesses is an important factor in resolving issues of credibility. Only
the Judge has had the benefit of observing the witnesses while they testified.
We will not overrule a judge's determination regarding credibility of witnesses
unless a clear preponderance of all the relevant evidence demonstrates that the
determination was incorrect. We have examined the record carefully and find no
basis for reversing the Judge's credibility findings. U.S. Department of
Justice, Litigating Di